Shorten v David Hurst Constructions Pty Ltd

The appeal concerned a contract for the construction of residential units, one of which was intended to be the developer's residence. The primary dispute revolved around whether this contract was excluded from the operation of the *Building and Construction Industry Security of Payment Act 1999* (NSW) by virtue of section 7(2)(b) of that Act. The matter was heard in the Court of Appeal of New South Wales.

The central legal issue before the court was the proper interpretation of section 7(2)(b) of the *Building and Construction Industry Security of Payment Act 1999* (NSW), which provides for certain contracts to be excluded from the Act's provisions. Specifically, the court had to determine whether the contract in question, involving the construction of residential units where one was intended for the developer's own use, fell within the exclusion. This required the court to consider the scope and application of the exclusion provision in the context of residential construction.

The court's reasoning involved a detailed examination of the statutory language of section 7(2)(b) and its purpose. The judges considered the legislative intent behind the exclusion, particularly in relation to owner-occupier situations. In interpreting the provision, the court also had regard to the principles of statutory interpretation, including the permissible use of extrinsic material under sections 33 and 34 of the *Interpretation Act 1987* (NSW) to aid in understanding the meaning of the provision. The court concluded that the contract did not fall within the exclusion.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.